The Asia Bibi Blasphemy Law Case in Pakistan: Winning the Battle, Losing the War

Editor Rachel Mazzarella comments on the Pakistan Supreme Court decision for Asia Bibi v. The State. The Pakistan Supreme Court’s decision to acquit Asia Bibi of blasphemy charges brought forth questions about evidence, judicial independence, procedure, and the state’s authority in matters of law and religion.

On October 8, 2018, the Supreme Court of Pakistan vacated the conviction of Aasiya Noreen, known more commonly as Asia Bibi.1 Ms. Bibi, a Christian mother of five, was sentenced to death by hanging in 2010 for committing blasphemy2 after she allegedly uttered derogatory comments about the Prophet Muhammad to some of her fellow workers while picking berries in a field.3

Bibi’s conviction met with a swift backlash among international human rights observers, who have long regarded Pakistan’s blasphemy regime as an assault on minority rights. 4 Her initial trial and subsequent conviction were plagued by deficiencies that these observers have argued are endemic to the Pakistani justice system, such as inconsistencies in witness testimony, the admissibility of coerced confessions, ineffective assistance of counsel, and inadequate opportunities for appeal.5

The Supreme Court’s recent reversal of the conviction did nothing to suggest that these deficiencies have been cured at the lower trial level, but it did indicate a willingness to correct wrongful convictions after the fact, even in the face of tremendous pressure to do otherwise. No doubt realizing the significance of the Court’s decision, Chief Justice Mian Saqib Nisar’s lengthy opinion wove together elements of historical analysis, social science, and Islamic legal reasoning to make a convincing case not only for the exoneration of Asia Bibi but also for a check on the rampant exploitation of these laws to promote political aims and settle personal vendettas.

No official records exist, but an estimated 1,472 people have been charged with blasphemy offenses between the years 1987 and 2016.6 The rate of these convictions shows no signs of slowing down, with 100 cases being filed since 2011 alone.7

Nevertheless, legal quibbling is often of little consequence if mob rule ultimately dictates who lives and dies when accused of blasphemy. With her release from prison after eight years under strict supervision, the Asia Bibi case will serve as a litmus test of Pakistani society’s willingness to accept the role of the courts in meting out justice for religious offenses without taking the law into its own hands.

Justice Nisar’s landmark opinion highlighted three main points that complicate the history of blasphemy law in Pakistan and contribute to the difficulty of predicting the future impact of Bibi’s acquittal: 1) Pakistan’s blasphemy regime reflects, in part, a colonial past 2) Islamic legal norms cut both ways in the blasphemy debate 3) Blasphemy laws continue to fail in their primary purpose.

Pakistan’s Blasphemy Regime Reflects, in Part, a Colonial Past

The crime of blasphemy is not unique to Pakistan. According to the Pew Research Center, up to 26% of the world’s countries and territories have some form of criminal sanction for blasphemy on the books.8 Nor are blasphemy laws unique to the Islamic legal tradition, as numerous Christian majority nations such as Ireland and Italy incorporate some form of blasphemy protection into their legal codes.9

As Justice Nisar made evident in his opinion, blasphemy laws as found in modern Pakistani law spring from the colonial period and do not necessarily represent Islamic legal norms. That is, Pakistan’s blasphemy laws emerged during the British Raj colonial rule over the Indian subcontinent.10 As a result, the provisions of the Pakistan Penal Code that describe the crime of blasphemy share a heritage with the crime found in other former British colonies such as India, Bangladesh, New Zealand, and Australia.11 Each of these jurisdictions approach blasphemy in different ways, some by penalizing conduct that insults religion generally and others that concern remarks made about a specific religious group.12

When drafting the Indian Penal Code of 1860, the precursor to the post-partition Pakistan Penal Code, the British first intended the blasphemy provisions to replace what they viewed as a divisive form of Islamic or “Mohammedan” Law among the colony’s Muslim population.13 Far from promoting conflict, the law ostensibly fostered harmony among the religiously diverse society that at times quarreled in violent and destabilizing ways. The British intended to head off mob rule by channeling the community’s rage at being publicly maligned by other segments of society and providing rule-of-law-based alternatives to vigilante justice. The context in which these early blasphemy laws were formulated served British colonial interests in establishing order and quelling interreligious fighting, but later blasphemy offenses in post-independence Pakistan represented attempts by the military dictator Zia ul Haq to consolidate control between the years 1977-1988. 14

This shift is evident from the narrowing of protection against attacks on all religions to protection against attacks on the tenets of Islam, specifically. The most notorious crime set out in this expanded group of “offences relating to religion” was the Chapter XV, Section 295-C blasphemy charge that was levied against Asia Bibi and that mandates a maximum sentence of death or life in prison.15 Other religious offenses added during this era included defiling houses of worship,16 damaging a copy of the Holy Qur’an,17 disturbing religious assembly,18 using derogatory remarks towards holy figures,19 misusing holy titles,20 and professing oneself to be a Muslim as a member of the Ahmadi community.21 The Hudood Ordinance instituting punishments for behavioral offenses thought to be in conflict with Islamic law was also passed during this time period as part of Zia’s overall “Islamization” of the Pakistani Penal Code.22

Notably, Justice Nisar’s opinion carefully traced this history through the variety of sources from which Pakistan has derived modern blasphemy law without shying away from the reality of mob justice that inspired the British to bring about blasphemy offenses in the first place. He characterized those laws as a subtle balance that the colonizers sought to strike, and noted that they carry through to present day Pakistani governance.

Islamic Ideals Cut Both Ways in the Blasphemy Debate

Islam is the official state religion of Pakistan,23 and as such, legislators and jurists must look to define blasphemous conduct through the prism of shari’a or Islamic law rulings called fiqh.24 Therefore, it is worth noting where and how the Pakistani practice deviates from the Islamic legal tradition.

Although the Qur’an mentions the act of apostasy, ridda or irtidād,25some thirteen times, it does not criminalize it. Instead, any prohibition on non-Muslims uttering injurious or insulting words about Islam and the Prophet is referenced only indirectly insofar as these words contribute to otherwise treasonous conduct.26 Nowhere does the Qurʾān explicitly mention criminal punishment of non-Muslims for either of these acts.27 The corpus of reports attributed to the Prophet (ḥadīth), on the other hand, prescribe death for one who “repudiates his religion and separates himself from the community.”28 Yet, it is not self-evident what impact this prohibition would have on non-believers who constitute a separate religious identity.

Over time, jurists from Sunnī Islam’s four main schools of Islamic thought began to untether the crime of “plain” blasphemy from the requirement of treasonous intent.29 They interpreted this new politically agnostic version of blasphemy to apply to non-Muslims based on the rationale that this type of behavior violated the dhimmī pact that “people of the book” (Jews and Christians) had with the Muslim state and from which they derived their special protection.30 Having severed this protective tie, they concluded that blasphemy was punishable by death because it undermined not only the faith but threatened the existence of the state as a form of constructive treason.31 Tellingly, some jurists suggested that female offenders were subject to lesser sentences because they lack influence over affairs of the state.32

In Pakistan, these medieval rules as they evolved to criminalize blasphemy were adopted wholesale. Although thus far no one has been executed for blasphemy in Pakistan since the 1980s,33 its comparatively harsh treatment of “plain” blasphemy offenses devoid of treasonous intent found its roots in this line of scholarship.

But the Islamic legal analysis does not end there. A striking aspect of Justice Nisar’s opinion was his willingness to engage with this textual background and to apply overarching principles found in Islamic legal tradition. He began his opinion by emphasizing the centrality of the Prophet Muhammad to Islam before engaging in a lengthy explanation of the principle of tolerance within the Muslim faith:

“[Tolerance] is a religious and a moral duty and further relates to the dignity of human beings, the equality amongst all creations of Allah and also to the fundamental freedom of thought, conscience and belief. It does not mean compromise, lack of principles or lack of seriousness about one’s principles rather it means accepting the fact that human beings, naturally distinct in their appearance, situation, speech, behavior, and values, have the right to live in peace and to be as they are.”34

Justice Nisar powerfully countered the argument that blasphemy should be punished severely even in the face of meager evidence with passages from the Qur’an that advocate for freedom of religion. In doing so, he cited one of the mostly well-known verses, 256 of the Sūrat al-Baqara: “There is no compulsion in religion.”35 For him, this was an explicit recognition of the freedom of religion that meant that, despite the respect to which the Prophet Muhammad is entitled on account of his “outstanding demonstration of extremely lofty moral values and personal highest exemplary role model,”36 true believers should respect the right of others to choose to observe another faith. Islam dictates that believers live in “peace and harmony, with compassion and love to our other fellow human beings.”37

Therefore, he concluded, although Islamic law as interpreted by the jurists permits the punishment of words and conduct that insult the Prophet Muhammad, it likewise admonishes followers against making false accusations and penalizing the free expression of religion. As Justice Nisar strongly asserted, both principles must be weighed against each other in order to reach a just outcome.

Blasphemy Laws Continue to Fail in Their Primary Purpose

But to what extent is the government of Pakistan obliged to channel its population’s distaste for blasphemy into a potent legal remedy? What distinguishes blasphemy law in Pakistan from its counterparts in other countries is not just the severity of the penalty that is imposed but its extraordinary popularity, as well.38Blasphemy law in Pakistan has typically drawn its strength from the “trifecta of public opinion, executive and legislative power, and the judicial system.”39 But it is the everyman – especially followers of the conservative Tehreek-e Labbaik Pakistan party40 – who continue to nurture its longevity. Attempts to reform the laws have met with a groundswell of opposition from the corridors of power as politicians and lawmakers crumble under the weight of constituency demands, and the enthusiastic embrace of criminalizing blasphemous speech has led to the extrajudicial murder of as many as 62 individuals facing blasphemy charges since 1990.41 Moreover, this public fervor has influenced the evidentiary and procedural standards necessary to secure conviction for blasphemy offenses.

Criminal law, in both Islamic law and other jurisdictions, is governor by substantive and procedural norms to guard against miscarriages of justice. Justice Nisar’s opinion stresses the fact that, like other countries in the common law tradition, the Pakistani legal system maintains a presumption of innocence and the benefit of the doubt as a matter of right in criminal trials42 (known in the United States as both a factual standard of evidence requiring proof beyond a reasonable doubt and a legal standard called the “rule of lenity” requiring clear laws before the imposition of punishment; these norms are present in a similar form as an Islamic legal canon of construction: the “doubt canon”).43 Many other capital offenses in Pakistan maintain that the underlying offenses be committed with the requisite criminal intent, or mens rea, that was deliberate or malicious.44 Legal norms invest the judiciary with the responsibility to take all available steps to “ensure that no innocent person is compelled or constrained to face an investigation or a trial on the basis of false or trumped up allegations regarding commission of such an offence,”45 and to punish those who lodge frivolous or pretextual complaints. Islamic law, for its part, dictates that life can only be taken by means of “[legal] right” which presupposes adequacy of process.46

The judiciary’s continued application of these legal principles in procedure and substance, albeit irregularly, has created “a sizable disconnect between the law enforced by politicians and judges (who rely on the rule of law and the democratic process), and the law enforced by the masses (who rely on traditional notions of justice derived from strict adherence to Islam).”47 As with earlier British attempts to deter the resort to self-help in its religiously pluralistic colonies, one of the basic functions of a legal system should be to translate a community’s sincere need for recompense and retribution into a predictable, orderly set of rules that are accepted by all. In this respect, Pakistan’s blasphemy laws have failed to provide an efficient mechanism for expressing community outrage while simultaneously upholding the legitimacy of the court system on which the functioning of the state relies.

A New Dawn or Business as Usual?

Whether the Supreme Court’s decision to vacate Asia Bibi’s sentence heralds a new era of judicial independence and accountability has yet to be seen. But there is ample reason to be skeptical: the price for Asia Bibi’s long-term detention has already been paid in blood. In a statement lauding the Court’s ruling, the Human Rights Commission of Pakistan mourned the passing of Punjab governor, Salman Taseer, and the federal minister for minorities’ affairs, Shahbaz Bhatti, both of whom lost their lives as a result of defending Bibi’s right to a fair trial.48

The risk of further violence in the form of rioting and public vigilantism continues to run high. The Supreme Court delayed release of its decision for three weeks in response to widespread death threats against the lawyers and justices who were involved in the case, including Justice Nisar who penned the opinion on the eve of his retirement.49 Moreover, Asia Bibi’s defense lawyer, Saif ul Mulook, fled the country some time ago, fearing reprisal.50 Against the wishes of human rights observers, the government Pakistan has refused to extend protective custody to Asia Bibi and her family who face very credible fears of retaliation.51 Adding insult to injury, the government bowed to considerable public pressure and announced that it would also take measures to prevent Asia Bibi from leaving the country.52

What is Pakistan to do with its blasphemy law? Some scholars have suggested adding an element of treasonous intent and differentiation between Muslims and non-Muslims53 to make blasphemy laws less susceptible to exploitation and to bring them into better conformity with Islamic legal tradition.54 But these efforts at reform have largely fallen on deaf ears due to persistent public resistance. “Activist” judges such as Justice Nisar face dire consequences for their attempts to enforce fundamental institutional and criminal law norms. With each extrajudicial murder, more qualified lawyers and jurists are deterred from taking a meaningful stand in defense of the values of their profession. At least nineteen people are still serving on death row in Pakistan for blasphemy offenses.55 Until the Pakistani government is willing to invest in regularizing judicial processes and evidentiary standards, providing adequate protection to individuals facing blasphemy charges, and clamping down on those utilizing extrajudicial remedies, justice by torch and pitchfork may prove inevitable.

[2] Use of Derogatory Remarks, etc., in Respect of the Holy Prophet §295-C, Pak. Penal Code (XLV of 1860) (Pak.). “295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:

Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

[15] Review of Section 295-C by the Federal Shariat Court, which examines legislation for compliance with shari’a law, later determined that only death could be a permissible penalty per provisions of the Constitution of 1973. Muhammad Ismail Qureshi s Pakistan

through Secretary, Law and Parliamentary Affairs (PLD 1991 FSC 10).

[21] PPC, Section 298-C. Originating in the Indian subcontinent in 1889, the Ahmadiyya are followers of the teachings of Mirza Ghulam Ahmad, whom they believed to be the “Mahdi,” a messianic figure whose return at the Day of Judgment they believe was promised by prophetic tradition. Today, the largest population of Ahmaddiya in the world is found in Pakistan. Avril A. Powell, Ahmaddiya, Encyclopedia of Islam and the Muslim World 30 (2004), www.sabrizain.org/malaya/library/encislam.pdf.

[22] Matt Hoffman, Modern Blasphemy Laws in Pakistan and the Rimsha Masih Case: What Effect – If Any – The Case Will Have on Their Future Reform, 13 Wash. U. Global Stud. L. Rev. 371, 376-379 (2014).

[46] This phrase has been variously translated by different sources. The literal translation is “by right,” but others have utilized a more fulsome interpretation, “by way of justice and law.” In the interest of not deviating too much from the underlying text, I have decided to keep the translation as literal as possible. [Al-Ana’im 6:151]

Rachel Mazzarella is a Non-Resident Fellow at the Georgetown Center on National Security & the Law, where her current research focuses on counterterrorism, international criminal procedure, and conceptions of citizenship. Prior to becoming an attorney, she spent nine years as an Arabic Linguist and Intelligence Analyst for the U.S. Government.